Health Minister Manto Tshabalala-Msimang celebrates as she leaves the hearing

By Greg Barrow in South Africa

Groups campaigning for wider access to affordable drugs in the developing world have hailed the climb-down of the 39 pharmaceutical companies involved in court action against the South African Government, as an historic victory.

They have encouraged the media portrayal of this as a "David versus Goliath battle", in which a developing country has taken on the mighty pharmaceuticals, and won.

However, behind the euphoria, many admit that the latest twist in this long legal battle is not going to immediately open the floodgates to cheaper drugs in South Africa.

It is unlikely drugs will be provided for all who need them

There are a number of obstacles to negotiate before this can happen.

First and foremost is the fact that the South African government's health policy is in disarray.

It has mounted a lacklustre response to the country's Aids crisis, affecting almost five million HIV positive people, and it is still unclear whether the government will support the use of anti-retroviral drugs which are used widely in Europe and the US.

It seems unlikely that a government which has yet to make its mind up about the scale of its own Aids epidemic, and the best way to fight it, will move quickly in authorising the importation or production of cheaper generic versions of anti-retroviral drugs.

Legal obligations

Another more serious obstacle is the South African Government's legal obligations under World Trade Organisation rules, regarding any decision to import generic drugs.

Shortly after the conclusion of the case between the government and the pharmaceutical companies, the South African Health Minister, Manto Tshabalala-Msimang, read out a joint statement, which had been approved by her former adversaries in this legal battle.

In it, she gave assurances that any measures adopted by her government to deal with public health crises, would be taken "in accordance with the South African constitution, and Trips (Trade Related Aspects of Intellectual Property Rights)."

Under the Trips agreement, the government can issue "compulsory licences" to allow the production and sale of products protected by patents, without the agreement of the patent holder.

Case-by-case

But if the South African Government is going to play by these rules, it will have to fulfil certain conditions.

Compulsory licenses are only considered on a case-by-case basis, meaning that the government would have to justify reasons to secure drugs for specific health problems.

The government would also have to show that it had made a sufficient effort to obtain authorisation from the patent holder to license production of the required drugs on normal commercial terms.

The government could, however, avoid these conditions, if it declares that the drugs are required to deal with a health problem that is a national emergency.

No quick-fix

What this illustrates, is that there is no quick-fix way of bringing affordable, life-saving drugs onto the market, and even if there was, there is always the question of how the government would get the medicines to the people who most need them.

One of the biggest challenges South Africa faces, is how to cope with poor infrastructure which severely limits the reach of the health service.

In the case of HIV positive patients, this is critical.

If they are to survive, they would need treatment with anti-retrovirals for the rest of their lives, and the drugs would have to be taken in a strict regime.

With all the will in the world, it would be difficult for any health system, let alone one coping with an estimated five million HIV positive people, to achieve the impossible, and reach every single one.